from the what's-so-'special'-about-the-special-301-report dept

Mocking the ridiculous "Special 301 report" from the US Trade Representative has become something of an annual sport around these parts. As we've explained, the whole concept of the report is something of a joke: copyright, patent and trademark maximalists send in reports to the USTR, claiming which countries don't do enough to respect US intellectual property, and the USTR -- via no systematic or objective process -- rewrites those complaints into a report that declares certain countries "naughty" for their practices. The whole thing is such a joke that even those in the government will openly mock it. As I've said in the past, I once saw the head of the US Copyright Office openly joke about the purely arbitrary nature of the 301 report at a conference. Countries like Canada -- which are regularly named to the report, despite having copyright laws that are, in many areas, more stringent than the US's -- have openly declared that they do not find the Special 301 process to be legitimate, and thus do not pay any attention to it. A couple of years ago, Chile also made it clear that it felt the 301 process was illegitimate.

However, other countries which rely on good relationships with the US often aren't so lucky. Spain and Sweden, for example, have been openly bullied by US diplomats because of their placement on the list, leading both countries to pass draconian and anti-innovation updates to their copyright laws. The diplomats in various countries often assume, incorrectly, that the Special 301 report has some sort of real analysis behind it -- and they feel the need to put pressure on countries to change their laws in a way that makes the US happy.

The clearest example of what a joke the 301 process is came two years ago, when CCIA tried to use the "process" behind the list to get Germany put on the list for attacking fair use. That actually seemed like a perfectly good use of the list, as Germany was trying to force search engines (mainly Google) to pay up for posting snippets of news and linking to them (a plan that it has continued to push). Here was a clear case of abusing copyright law to harm an American company. And the USTR totally ignored it. Because the Special 301 process is not about saner intellectual property laws. It's about making intellectual property maximalists happy. That's why some of those maximalists have even used the process to get countries declared naughty for merely using open source software.

The EFF has released its own filing to the USTR for this year's Special 301 report, and the filing does a really nice job explaining what a joke the whole report is and how the whole process is broken, with clear examples of just how arbitrary and capricious the USTR's report can be:

In Argentina, widespread copyright infringement in the education sector results directly from the lack of adequate exceptions and limitations for education that U.S. teachers and students take for granted—yet the USTR never makes any comment suggesting that more copyright flexibilities are needed; only ever calling countries out for not doing enough to protect rightsholders.

In Chile, the adoption of that country's “notice and notice” regime of Internet service provider (ISP) liability was the well-considered outcome of a lengthy democratic process, based on the very specific provisions of Chile's constitution—yet the USTR high-handedly expects that Chile will abandon this carefully-chosen model in favor of a carbon-copy of the DMCA.

The U.S. government's tentacles have extended into Paraguay's domestic policy making through a USAID-funded anti-piracy program of the sinister-sounding Millennium Challenge Corporation. This intervention, under the guise of offering development assistance, actually amounts to an interference in that country's sovereign right to determine its own intellectual property policies.

Last year's Special 301 Report makes factually incorrect assertions about Peru's intellectual property system, notably new rules on government use of software, while also failing to comment on long-overdue reforms that advance the public interest through the extension of copyright limitations and exceptions.

Our Russian contributor highlights a range of tough intellectual property enforcement measures, that the Special 301 Report has overlooked. Yet Russia is still highlighted as one of the worst IP offenders—the end result of which, if Russian lawmakers heed the report, may be even more repressive rules that restrict Russian users' rights and freedoms.

In Vietnam, although one of the poorest countries targeted in the Report, our contributor points out that huge strides have been made to address the concerns of rightsholders in such areas as software piracy, book piracy, and music piracy. Conversely, the contributor expresses valid concerns about how an over-emphasis on enforcement can impact on access to knowledge for some of the world's most disadvantaged peoples.

The filing also describes where the USTR goes wrong with its efforts (basically everywhere):

One of the key points that we and our partners make in this submission is that the process for drawing up the Special 301 Report is fundamentally flawed. Indeed, it skirts very close to the line of transgressing international law, by strong-arming other countries into changing their laws, outside of the official channels provided for resolving trade disputes through the World Trade Organization (WTO). Whereas WTO trade disputes (although problematic in other ways) are resolved by a notionally neutral arbitrator, the Special 301 Report is unabashedly partial to the complainant—the USTR acts as its own judge, jury, and executioner.

As such, as our submission points out, the USTR writes its own rules. Rather than sticking to WTO standards such as the TRIPS Agreement, it commonly demands that countries go further than their international obligations require—for example, demanding that they criminalize the act of operating a camcorder in a movie theater, that they accede to the problematic WIPO Internet Treaties that outlaw the circumvention of DRM, and that they adopt a DMCA-style notice-and-takedown regime for intermediary liability.

Conversely, the Special 301 Report completely ignores the trade benefits of copyright flexibilities, such as personal copying exceptions or fair use—or worse, it treats these as a trade barrier, and demands that countries amend or repeal them. No allowance is given to developing countries (which comprise the vast majority of countries called out in the Special 301 Report), despite the fact the intellectual property laws suitable for such countries are quite different to those required by a highly industrialized country such as the United States.

Of course, many of us have been pointing out things like this for years, and the USTR keeps pushing forward, with the same broken process year after year after year. And why not? If it didn't do that, how would all those former USTR employees find jobs as lobbyists after they're done working for the government?

from the base-ingratitude dept

Here on Techdirt, one of the things we look forward to each year is the comedy production known as the 301 Report, where the US makes the world line up in a row, and then names and shames all the naughty countries whose intellectual monopoly laws aren't outrageous enough. In advance of the official naughty list, there are helpful suggestions from the fans of monopoly maximalism, including the International Intellectual Property Alliance (IIPA), which has just released its 2013 demands. Mostly it's the usual suspects -- China, India, Russia etc. But there's an interesting change from the previous year's list: Canada has moved from the really naughty "Priority Watch List" to the only slightly naughty "Watch List".

Those that thought passing Bill C-11 -- the Canadian copyright reform bill that contained some of the most restrictive digital lock rules in the world -- would satisfy U.S. groups will be disappointed. The IIPA wants Canada back on the piracy watch list, one notch below the Special Watch List (where the US placed Canada last year).

Despite the praise for Bill C-11 last year, the groups are right back in criticism mode and demanding reforms. The IIPA is now unsure if the enabler provision will help stop sites that facilitate infringement (despite the fact that its members have yet to use the provision) and concerned with the prospect of new exceptions to the digital lock rules. In fact, its criticisms of the rules for Internet providers (it wants a notice-and-takedown system, tougher rules on search engines that link to infringing content, and new rules to target repeat infringers) are so strong that the organization implausibly claims possible non-compliance with the WIPO Internet treaties.

Contrary to the expectations surrounding the implementation of ley Sinde that led to
Spain's removal from the Special 301 Watch List last year, Spain saw no positive developments in 2012.

Let's hope Canada and Spain -- and everyone else -- draw the obvious conclusion from the IIPA's latest calls: that no matter what countries do, no matter what legislation they bring in, and no matter what disproportionately harsh punishments they inflict on their own people, it will never, ever be enough, and there will always be further demands, and further threats to put them back on the naughty lists. The only solution is to stand up to this blackmail once and for all, and to treat the Special 301 list with the contempt it deserves.

from the shall-make-no-law dept

We've pointed out repeatedly in the past the problems you run into with copyright law once you realize that, fundamentally, it violates the First Amendment. While courts have tried to get around this simple fact with convoluted reasoning, and claims that fair use and the (often ignored) idea/expression dichotomy, if you are being intellectually honest, at some point, you need to admit that copyright law and free speech are in conflict. Now, that said, it's perfectly reasonable to then claim that this is an area where it's reasonable to make exceptions to free speech, but I would think that would require a pretty strong burden of proof -- one we have yet to see. I've recommended it before, but an excellent book on this subject is the book No Law, by David Lange and Jefferson Powell, where they spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment, and that courts who have claimed otherwise have been wrong as a matter of law (the second half of the book then explains how copyright law can still exist with massive changes -- effectively a compulsory licensing solution, that I don't think makes much sense). Neil Netanel's Copyright's Paradox is also an excellent examination of the topic.

But, of course, these scholarly books often don't convince people who dismiss "academics" as not understanding the real world. Yet, the more you look, the more you see how it's out there in the real world that copyright law is regularly used to suppress speech and create serious chilling effects on speech. The recent example of Russia using copyright law to suppress dissent among civil society groups critical of the government is only one example. We've suggested, repeatedly, that the US's policy of pushing our copyright and patent laws on foreign countries is a huge mistake, which they don't comprehend. That's because they don't realize that these laws are, fundamentally, about restrictions on speech and on actions -- and handing such tools to oppressive governments, and believing that they'll actually be used to protect content creators or inventors is fundamentally naive and dangerous. We're starting to see it in China as well, where patent laws have been used to attack foreign companies in the aid of domestic firms. Copyright law has also been abused this way in China with "crackdowns" on "piracy" often being used to make Americans look bad.

And, really, this is just the beginning. As these oppressive governments realize the power of using these laws (pushed on them by American diplomats) for their own corrupt political purposes, these sorts of activities will only increase in both number and severity. Not just handing oppressive regimes these tools, but demanding they use them, is so incredibly short-sighted, it's amazing that US diplomats haven't already realized the problems involved.

Hopefully, the situation in Russia serves as at least some kind of wake-up call. Some are pointing out the seriousness of the situation, and noting that it's no one-off misuse case, either. Michael Geist has highlighted how things like ACTA and the USTR's Special 301 report are all about exporting these tools, without the careful balances that try to keep them from suppressing free speech. He notes that this isn't just Russia being Russia, but a direct end result of US pressure:

The US has regularly cited Russia in
its Special
301 report, this year including it on the Priority Watch
list. The IIPA, the industry lobby group that includes software
associations, pushed
the U.S. to target Russia, saying that is imperative that prosecutors
bring more IPR cases. In fact, the IIPA complained that Russian
authorities do not seize enough computers when conducting raids.
On
top of all this is the Anti-Counterfeiting Trade Agreement, which will
provide Russia with a template to follow on IP enforcement, including
new seizure powers with less court oversight.

It has often been
pointed out that the ACTA/Special 301 report approach seeks to export
tougher
enforcement measures - often to countries where free speech is not a
given - without including the exceptions, due process, and balancing
provisions. The recent Russian case highlights why this is such a
dangerous and misguided approach that is apt to cause more problems
than it solves.

Richard Esguerra is making a similar point for the EFF, noting that these sorts of actions in Russia are the direct end result of US diplomatic pressure, often coming from a few key industries, where those involved are naive about how such laws can and will be misused to suppress speech:

But this issue isn't limited to Microsoft or to software. A sprawling, powerful group-of-groups in the content industry, including movie and music industry lobbyists, software companies, and others, is constantly demanding that governments worldwide be given new powers to search for and seize allegedly pirated materials, and that those governments should act on those powers forcefully. In the name of copyright enforcement, the lobby shortsightedly demands provisions that put human rights at risk throughout the world: the power for governments to censor parts of the Internet with so-called copyright filtering, power for governments' border agents to search travelers' goods for "infringing" items, power for governments to detain alleged infringers pre-trial.

If the copyright lobby gets their way with the Anti-Counterfeiting Trade Agreement (ACTA) or if governments continue to act on the claim that "piracy" demands sweeping changes to Internet privacy and freedom, then we can generalize the New York Times headline -- "Russia Uses Microsoft to Suppress Dissent" -- into something we'll surely see more often: "Regime Uses Copyright Violations to Curtail Freedoms."

This episode should remind legislators and policymakers worldwide of the real risk that powers enacted in the name of copyright enforcement can to be used to do real harm. Ensuring balance in copyright law is not just good copyright policy -- it's necessary to protect human rights and fundamental freedoms worldwide.

Lawyer Denise Howell has a similar warning, especially as we head into ACTA's home stretch:

This story seems particularly timely given that finalization of the Anti-Counterfeiting Trade Agreement (ACTA) is imminent. Even without ACTA, a government in search of a pretext has all the tools it needs to ransack or seize computers in the name of protecting foreign copyright holders. ACTA promises to provide a whole new legal infrastructure and justification for such tactics, in addition to the myriad concerns it raises simply if enforced in a non-corrupt, as-intended manner.

Over in Mexico,
environmental protesters are apparently also being attacked through copyright
to censor
their materials. A Youtube video was apparently temporarily taken down as
the result of a regional government complaining their copyright had been
violated by reproducing their animation of a planned highway....

Copyright law and free speech are fundamentally in conflict. It bears repeating, because most of those pushing for things like ACTA simply do not recognize this simple fact -- and when they then try to export the expression suppressing parts of copyright law without the all important exceptions and guarantees of free speech, it should come as no surprise, at all, that governments use the law the US pushed on them to suppress speech and dissent. What is not acceptable is for US policy makers to continue to ignore this key point.